Tuesday, June 29, 2021

Your Excellency’s Attempt to Suspend Mr. Paul Esmond Slowe, CCH, DSM, JP, Chairman, and Commissioners Mr. Michael Somersall, CCH, DSM, JP, Mrs. Claire Alexis Jarvis, Mrs. Vesta Adams and Mr. Clinton Andrew Conway of the Police Service Commission

 

June 28, 2021                          by whatsapp and email

 

His Excellency Dr. Mohamed Irfaan Ali

President of the Cooperative Republic of Guyana

Office of the President

Shiv Chanderpaul Drive & South Road

Bourda, Georgetown, Guyana

 

 

Dear Excellency, President Ali,

 

RE: Your Excellency’s Attempt to Suspend Mr. Paul Esmond Slowe, CCH, DSM, JP, Chairman, and Commissioners Mr. Michael Somersall, CCH, DSM, JP, Mrs. Claire Alexis Jarvis, Mrs. Vesta Adams and Mr. Clinton Andrew Conway of the Police Service Commission

I write on behalf of my clients Mr. Paul Esmond Slowe, CCH, DSM, JP, Chairman, and Commissioners Mr. Michael Somersall, CCH, DSM, JP, Mrs. Claire Alexis Jarvis, Mrs. Vesta Adams, and Mr. Clinton Andrew Conway of the Police Service Commission (“the Commission”) in response to your letters to each of the aforementioned dated June 16, 2021.

 

In each of your letters, Your Excellency states that you have been advised by Prime Minister The Honourable Mark Anthony Phillips, MSS, to initiate an investigation into the question of the Commission members’ removal from office, and to suspend them “from performing the functions of that office with immediate effect pending those investigations.” You attach two letters from the Prime Minister, both dated June 15, 2021, reiterating the allegations contained in the Show Cause Notices of May 19, 2021 and June 1, 2021 and containing the aforementioned advice.

 

You further state in your letters to the members of the Commission that you have accepted the Prime Minister’s advice “and shall establish a tribunal in the manner prescribed by Article 225”[1] to inquire and report on the matter of the proposed removal, and that the members of the Commission “are hereby suspended with immediate effect from performing the functions of [office] pending the establishment of the aforementioned tribunal.”

 

You have also been publicly quoted as saying “I’m following the Constitutional process that is outlined in dealing with these matters, and that’s all I am doing. I have no intention of breaching the Constitutional process. There is a Constitutional process in which to deal with all these allegations that have been made against members of the Commission and that is what has been triggered, nothing more than that…”[2]

 

For the reasons that follow, I have advised the members of the Commission that the purported suspensions asserted by Your Excellency in these letters are manifestly ultra vires Article 225 of the Constitution, unlawful, illegal, premature and of no legal force, import or effect. I could come to no other conclusion having regard to the relevant provisions, and in particular Articles 225(6) and 210(3).

 

The Purported Suspensions of the Commission Members are Ultra Vires the Constitution

 

As you are aware, and as I have stated in our submissions in response to the various Show Cause Notices of May 19, 2021 and June 1, 2021, suspension and removal from office at a Constitutional Commission are regulated by Article 225 of the Constitution, of which paragraph (1) states, “a person holding such office… shall not be removed therefrom or suspended from the exercise of the functions thereof except in accordance with the provisions of this article.” [3] [4] [5]

 

Suspensions under Article 225 are controlled by paragraph (6), which reads in full:

 

(6) If the question of removing the officer from office has been referred to a tribunal under this article, the President, acting in accordance with the advice of the prescribed authority, may suspend the officer from performing the functions of his office, and any such suspension may at any time be revoked by the President, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the President that the officer should not be removed from office.

 

In accordance with this paragraph, while you can in certain circumstances suspend members of the Commission, you may only do so “with the advice of the prescribed authority”, and only if the question of removal “has been referred to a tribunal.”

 

As to who “the prescribed authority” empowered to recommend suspension is for each of the members of the Commission, I refer you to Article 210(3) of the Constitution, which deals with the Police Service Commission specifically and states:

 

(3) The provisions of article 225 (which relate to removal from office) shall apply to the office of an appointed member of the Police Service Commission. In the case of an appointed member other than the Chairman, the prescribed authority for the purposes of paragraph (4) of that article shall be the Prime Minister or the Chairman and for the purposes of paragraph (6) of that article shall be the Chairman. In the case of the Chairman the prescribed authority for the purposes of paragraphs (4) and (6) of article 225 shall be the Prime Minister.

It is clear from the above provisions that Your Excellency’s purported suspension of the Chairman and other members of the Commission is contrary to the Constitution in two respects: first, because the question of removal from office has not yet been “been referred to a tribunal”; and second, because, for all members other than the Chairman, you have not acted “in accordance with the advice of the prescribed authority” with respect to the suspensions.

 

 

The Suspensions Are Premature

 

Regarding the first issue of referral to a tribunal, Article 225(6) clearly states that suspension is only an option once “the question of removing the officer from office has been referred to a tribunal under this article.” However, Your Excellency purports in your letter to suspend the members of the Commission “pending the establishment of the aforementioned tribunal” and states that you “shall establish a tribunal in the manner prescribed by Article 225.”

 

Respectfully, Your Excellency has no such power. Clearly, one cannot refer a question to a tribunal that does not yet exist. The proposed suspensions of the members of the Commission are therefore all premature, null, void and ultra vires Article 225.

 

It must also be noted that paragraph (4) of Article 225 dictates the process for appointing the tribunal to inquire into a proposed removal from office. This paragraph requires you to “act in accordance with the advice of the Judicial Service Commission, in appointing a tribunal which shall consist of a Chairman and not less than two other members, selected by the Judicial Service Commission from among persons who hold or have held office as a judge….”

 

At present, there is no Judicial Service Commission, with the last such Commission having come to an end in 2017. Accordingly, in order for Your Excellency to appoint a tribunal to whom you may refer the question of removal, as required by Article 225(4) and (6), a Judicial Service Commission should be constituted.

 

I attach, for your reference by way of precedent, a record of the last “Appointment of a Tribunal Under Article 225(4) of the Constitution of the Cooperative Republic of Guyana”, published in the Official Gazette of September 17, 2016 and concerning Mr. Carvil Duncan, then Chairman of the Public Service Commission, member of the Judicial Service Commission and member of the Police Service Commission. That tribunal was appointed “To inquire, investigate and recommend to the President whether [Mr. Duncan] ought to be removed from office” in accordance with Article 225(2).

 

That order by the President’s Command included the specific allegations against Mr. Duncan, the members of the tribunal and the specific mandate of the tribunal, including the required report and advice and timeline for the investigation. Only thus may such a matter be properly “referred to a tribunal” in satisfaction of Article 225(6).

 

As you will be aware, Mr. Duncan subsequently challenged the establishment of that tribunal as premature and prejudicial, and in October 2016, was successful in having the work of the tribunal suspended on procedural and substantive grounds.[6] Mr. Duncan was represented in that matter by the current Attorney General, Mr. Anil Nandlall.

 

The suspensions referred to in Your Excellency’s letters, being ordered before the referral of the removal question to a tribunal, which indeed does not exist (and cannot exist in the absence of a duly appointed and functioning Judicial Services Commission), are without lawful authority and of no force or effect.

 

You Have Not Acted “In Accordance with the Advice of the Prescribed Authority”

 

The second reason why the Constitution cannot countenance the purported suspensions of the members of the Commission is that Your Excellency has not acted “in accordance with the advice of the prescribed authority” as required by Article 225(6), except in the proposed suspension of Chairman Paul Slowe.

 

As indicated above, under Articles 225(6) and 210(3) jointly, the Prime Minister may advise the President to suspend the Chairman of the Commission, but not to suspend the other members. Rather, for the President to suspend these other members, the “prescribed authority” who must so advise him is the Chairman himself, while the Prime Minister can only advise the President with respect to these other members under paragraph (4) (appointment of a tribunal), not paragraph (6) (suspension of officers).

 

The Chairman, Mr. Paul Slowe, has not advised Your Excellency to suspend the other members of the Commission. These suspensions are therefore contrary to Article 225 and of no lawful force and/or effect, even if the removal question had been referred to a tribunal.

 

Summing Up and Conclusion

 

For the reasons set out above, it is clear that Your Excellency has not acted in accordance with Article 225, which is the only lawful means for suspending a member of a Constitutional Commission. In consequence, the purported suspensions of the Chairman and other members of the Commission are ultra vires the constitution, unlawful, illegal, premature and of no legal force, import or effect.

 

In other words, the members of the Commission have not been lawfully suspended from performing the functions of their offices and may therefore continue to do so. They have advised me that they intend to remain in office until such time as their terms are over or they are lawfully suspended or removed from office following referral of the question to a duly appointed tribunal.

 

Having regard to the unconstitutional and illegal suspensions discussed above, Article 227 provides:

 

226. (1) Save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution a Commission shall not be subject to the direction or control of any other person or authority.

 

(2) Subject to affirmative resolution of the National Assembly, a commission shall make rules, relating to the procedure of the commission; and until such rules are made, the commission shall regulate its own procedure.

 

(3) A Commission may, subject to the next following paragraph, act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings.

 

The Police Service Commission will therefore continue to perform its constitutional mandate in respect to discipline and promotion of Guyana Police Force Officers from Inspectors to Assistant Commissioners.

 

If Your Excellency is not in agreement with the above, it is your prerogative to refer the matter to the courts for determination. The members of the Commission are confident that, should you do so, any court will arrive at the inevitable conclusion that Article 225 does not enable you to suspend the members in the manner that you have purported to do.

 

Moreover, it must be noted that, should the matter be referred to a court, the various issues of procedural fairness, independence of Commissions under Article 226 of the Constitution, insulation of Commissions in accordance with Endell Thomas v Attorney General (Trinidad & Tobago),[7] and the fundamental Constitutional rights of freedom of association (Article 147(1)) and the presumption of innocence (144(1)), must also inform the court’s determination. By necessity, the court will consider the question of suspension in its full factual context, including the history of inappropriate, unconstitutional political interference by Your Excellency’s administration, outlined in detail in Mr. Slowe’s submissions dated May 31, 2021 and beginning with the attempt by Your Excellency to pressure the Commission to promote certain ineligible ranks friendly to the current government. [8] [9]

 

To the extent that Your Excellency’s attempt to suspend the members of the Commission is related to the upcoming decision of High Court Chief Justice George, anticipated June 18, 2021 (now postponed to June 28, 2021), in the application of Senior Superintendent Calvin Brutus and other senior police officers, it represents yet another attempt at inappropriate and unconstitutional political interference with the apparent goal of seizing control of promotions within the Guyana Police Force, a matter that is properly within the exclusive control of the Commission.

 

 

With respect to this latest assault on the Commission and its independence, I refer you to the words of the current Attorney General, Mr. Nandlall, in an article he published on October 16, 2016 with regard to the aforementioned investigation into Mr. Carvil Duncan and the alleged attempts by then President Granger to circumvent Article 225:

 

In short, the President has flagrantly violated the letter, spirit and intent of some of the most sacrosanct constitutional provisions and indeed his actions strike at the very heart of our constitutional democracy. Presidents (or Prime Ministers, as the case may be) have been impeached for far less in democratic countries.[10]

 

Fortunately, the Constitution provides clear and unambiguous protection against interference of this kind with respect to suspensions from office at Constitutional Commissions.

 

The members of the Commission will continue to do their important work until their terms end on August 09, 2021.

 

In the meantime, please contact me directly in the event you would like to discuss the above or any collateral matters.

 

Yours truly,

 

 

Selwyn A. Pieters, B.A., LL.B., L.E.C.

Lawyer & Notary Public

Attorney-at-Law

Of the Bars of Guyana,

Trinidad and Tobago and Ontario (Canada)

 

cc Clients

     Attorney General and Minister of Legal Affairs

     Prime Minister of Guyana

     Secretary, Police Service Commission

     Legal Officer, Public/Police Service Commission

     Commissioner of Police



[1] Constitution of the Cooperative Republic of Guyana, Chapter 1:01, Laws of Guyana.

[2] President defends decision to suspend entire Police Service Commission, (June 18, 2021) Online: News Source Guyana <https://newssourcegy.com/news/president-defends-decision-to-suspend-entire-police-service-commission/>

[3] See the Submissions of Paul Esmond Slowe, dated May 31, 2021, in response to the May 19, 2021 Show Cause Notice.

[4] See the Submissions of Clinton Andrew Conway, dated May 31, 2021, in response to the May 19, 2021 Show Cause Notice.

[5] See Joint Submissions of Mr. Paul Esmond Slowe, CCH, DSM, JP, Chairman, and Commissioners Michael Somersall, DSM, Clinton Andrew Conway, Claire Alexis Jarvis, and Vesta Adams of the Police Service Commission (“the Commission”), dated June 08, 2021, in respect to the Show Cause Notice letters of June 1, 2021.

[6] Denis Chabrol, “Carvil Duncan blocks Tribunal from proceeding with removal hearing” (October 20, 2016), online: Demerara Waves <https://demerarawaves.com/2016/10/20/carvil-duncan-blocks-tribunal-from-proceeding-with-removal-hearing>

[7] [1981] UKPC 28.

[8] Affidavit of Paul Esmond Slowe, affirmed May 28, 2021, [“Slowe Affidavit”]

[9] Affidavit of Paul Esmond Slowe, affirmed June 7, 2021, [“Slowe Second Affidavit”]

[10] Anil Nandlall, “President violated constitutional provisions in moving against Carvil Duncan” (October 15, 2016), online: Stabroek News <https://www.stabroeknews.com/2016/10/15/opinion/letters/president-violated-constitutional-provisions-moving-carvil-duncan/>.

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